If passed, the legislation could become a demonstration project for paid parental leave laws across the country. According toTheNew York Times, Newsom's team intends to include a plan in the budget to give every California worker with a newborn child six months of paid parental leave. Currently, California law, pursuant to the paid family leave program, provides up to six (6) weeks of partial wage replacement for a newborn child, if the employee is entitled to parental leave pursuant to employer policy or by law, such as for “baby bonding” under the Family and Medical Leave Act/California Family Rights Act. A task force will be formed to address questions such as whether the paid family leave can be split between two parents, or whether it could also go to an extended family member who steps in to help (in the case of a single-parent home, for instance). The new level of paid family leave would also be phased in over several years. Read more here.

In one of her first acts after being sworn in for her second term in the Assembly, Assemblymember Eloise Reyes (D-San Bernardino) introduced, along with Assemblymember Laura Friedman, AB 9 which extends the administrative timeline to bring forward a complaint of workplace harassment from one year to three years pursuant to the Fair Employment and Housing Act (FEHA).

According to Assemblymember Laura Friedman (D-Glendale) “Every victim of harassment deserves fair access to justice. In 2018, similar legislation, AB 1870 “The Stop Harassment and Reporting Extension “(SHARE) Act, passed the Assembly and Senate, but was vetoed by Governor Brown. Read more here.

The Cato Corporation, a leading retailer of women's fashion and accessories, has agreed to pay $3.5 million to resolve a nationwide, systemic investigation conducted jointly out of the Chicago and Philadelphia Offices of the U.S. Equal Employment Opportunity Commission (EEOC). The Cato Corporation, based in Charlotte, N.C., has also agreed to update its reasonable accommodation policies to ensure there is no discrimination against pregnant employees or those with disabilities. According to the EEOC’s investigation, The Cato Corporation denied reasonable accommodations to certain pregnant employees or those with disabilities, made certain employees take unpaid leaves of absence, and/or terminated them because of their disabilities.

The agreement between EEOC and The Cato Corporation provides for a claims process to distribute the $3.5 million to Cato employees who were terminated due to their pregnancy or disabilities. The Cato Corporation has also agreed to revise its employment policies to more fully consider whether medical restrictions of its pregnant employees or those with disabilities can be reasonably accommodated. The Cato Corporation will also conduct companywide training for over 10,000 of its employees and report to the EEOC periodically for three years on its responses to requests for reasonable accommodation by pregnant employees or those with disabilities.

"Giving employees a job modification that allows them to continue working can be a critical reasonable accommodation for pregnant women or people with disabilities when they really need that paycheck," said EEOC Chicago District Director Julianne Bowman. For more information read here.

SB 1343, in effect as January 1, 2019, expands the required AB 1825 harassment training to cover employers with five (5) or more employees (as opposed to employers with 50 or more employers), to include all nonsupervisory employees.

Specifically, the new law requires nonsupervisory employees of covered employers to receive one hour of harassment training, every two years, in addition to the two hours of training required for supervisory personnel. This training must be completed by January 1, 2020. The Department of Fair Employment and Housing (DFEH) announced a newonline resources pagefor employers, which includes information on required postings and other tools for addressing California’s discrimination and harassment laws. Also included is a “Sexual Harassment Prevention Training and SB 1343 FAQ” to assist with SB 1343 compliance. For more information, read here.

The Bureau of Consumer Financial Protection (Bureau) issued an interim final rule updating two model disclosures to reflect changes made to the Fair Credit Reporting Act (FCRA) by recent legislation.

In May 2018, Congress passed the Economic Growth, Regulatory Relief, and Consumer Protection Act, which requires nationwide consumer reporting agencies to provide “national security freezes” free of charge to consumers. The “national security freeze” restricts prospective lenders from obtaining access to a consumer’s credit report, which makes it harder for identity thieves to open accounts in the consumer’s name.

The Economic Growth, Regulatory Relief, and Consumer Protection Act mandates that whenever the FCRA requires a consumer to receive either the Summary of Consumer Rights or the Summary of Consumer Identity Theft Rights, a notice regarding the new security freeze right also must be included. The Summary of Consumer Rights is a summary of rights to obtain and dispute information in consumer reports and to obtain credit scores. The Summary of Consumer Identity Theft Rights is a summary of rights of identity theft victims. The FCRA requires the Bureau to write model forms of these documents. Consumer reporting agencies and other entities can use the Bureau’s model forms or their own substantially similar forms.

The May 2018 legislation also extends from 90 days to one year the minimum time that nationwide consumer reporting agencies must include an initial fraud alert in a consumer’s file. A fraud alert informs a prospective lender that a consumer may have been a victim of identity theft and requires that the lender take steps to verify the identity of anyone seeking credit in the consumer’s name. Congress set an effective date of Sept. 21, 2018 for the security freeze right, the notice requirement, and the change in duration for initial fraud alerts.

To assist businesses in coming into compliance with the new law, the interim final rule issued updates the Bureau’s model forms, incorporating the new required notice and the change to the minimum duration of initial fraud alerts. The interim final rule also takes steps to mitigate the impact of these changes on users of the model forms published by the Bureau in November 2012 by permitting various compliance alternatives.

Family HealthCare Network has agreed to pay $1.75 million and furnish other relief to settle a disability and pregnancy discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC).

According to the EEOC's lawsuit, Family HealthCare used its leave policies and practices to deny reasonable accommodations to its disabled and/or pregnant employees, refusing to accommodate them with additional leave and firing them when they were unable to return to work at the end of their leave. In some instances, Family HealthCare discharged individuals before they had even exhausted their approved leave and failed to rehire them when they tried to return to work.

In addition to the $1.75 million in monetary relief, the three-year consent decree requires Family HealthCare to retain an EEO monitor to review and revise the company's policies, as appropriate. The company will also implement effective training regarding preventing discrimination and harassment based on disability and/or sex-pregnancy for the owners, human resources and supervisory personnel and staff. Additionally, Family HealthCare will develop a centralized tracking system for employee requests for accommodations and discrimination complaints. The company is also required to submit regular reports to the EEOC verifying compliance with the decree.

"We commend the efforts of Family HealthCare Networks in resolving this case and providing substantial relief to those affected by the company's policies and practices," said Anna Park, regional attorney for the EEOC's Los Angeles District, which includes Tulare, Kings and Fresno Counties.

Melissa Barrios, director of EEOC's Fresno Local Office, added, "The EEOC continues to see cases in which employers have a rigid leave policy that discriminates against individuals with disabilities or pregnant employees. We are encouraged by Family HealthCare's desire to resolve this complaint and put in place policies to ensure that all employees are treated equitably under the law."

One of the six national priorities identified by the EEOC's Strategic Enforcement Plan (SEP) is for the agency to address emerging and developing issues in equal employment law, including qualification standards and inflexible leave policies that discriminate against individuals with disabilities as well as accommodating pregnancy-related issues under the ADA and the PDA.

Many California employers do not understand their legal obligation to pay “premium pay.” An employer’s failure to understand the obligation to pay “premium pay” when owed to an employee, can result in costly litigation pursuant to California’s Private Attorney General Act (“PAGA”). In general, “premium pay” is extra pay, at an employee’s regular rate of pay, that is owed to an hourly (non-exempt) employee when the employee fails to take a rest or meal period by the required time, due to action by the employer. For example, if an employer needs an employee to take a delayed rest or meal period because the employer is short staffed, the employee is owed one extra hour of pay, for a missed meal or rest period, up to a total of 2 premium pays in one work day. Specifically, Labor Code section 226.7 provides: “(a) No employer shall require an employee to work during any meal or rest period mandated by an applicable order of the Industrial Welfare Commission. [¶] (b) If an employer fails to provide an employee a meal period or rest period in accordance with an applicable order of the Industrial Welfare Commission, the employer shall pay the employee one additional hour of pay at the employee’s regular rate of compensation for each work day that the meal or rest period is not provided.” For any questions, let us know at Floyd Skeren Manukian Langevin, (818) 206-9222.

The California Department of Fair Employment and Housing (DFEH) has settled an employment discrimination case with the County of Los Angeles involving two complainants who were allegedly denied or delayed positions with the County due to the County’s pre-employment medical examination requirements, which the DFEH alleged were overly broad.

According to the DFEH’s complaint, one of the complainants was denied a position with the Los Angeles County Sheriff’s Department for more than 4 years because during her pre-employment medical exam she revealed that she had a thyroid condition, although she did not have any restrictions on her ability to perform the job. The other complainant was allegedly denied a position with the County when he revealed during his pre-employment medical exam that he had a prior knee injury although he too did not have any work restrictions. As part of the settlement, the County agreed to amend its civil service rules about pre-employment medical examinations and will overhaul its medical examination process to only consider medical information that is directly relevant to the job being applied for. The County will also pay a total of $560,000. Of that, $410,000 will be paid directly to a complainant and $150,000 to the DFEH for fees and costs. (The second complainant previously resolved the financial aspect of his case.) Read more here.

The Department of Labor (DOL) is reporting that a company, California Cartage Company LLC, which is based in Long Beach, California, will pay $3,573,074 to 1,416 employees after the DOL found the company violated federal contract provisions of the McNamara-O’Hara Service Contract Act (SCA).

Investigators allege that the California Cartage Company LLC violated the SCA by failing to pay prevailing wages, and required health and welfare benefits, to employees for work performed at a Centralized Examination Station operated for the U.S. Customs and Border Protection (CBP) at the Port of Los Angeles/Long Beach.Investigators also allege the company failed to apply the SCA clauses and wage determination to contracts for five subcontractors, which resulted in the subcontractors’ failure to pay required prevailing wages and fringe benefits to their employees as well. The contract required certain hourly rates, depending upon the positions workers held, and also required the payment of fringe benefits, holiday, and vacation time. Read more here.

The U.S. Equal Employment Opportunity Commission (EEOC) has released its FY 2018 sexual harassment data today - highlighting its work over the past fiscal year to address the pervasive problem of workplace harassment.

What You Should Know: EEOC Leads the Way in Preventing Workplace Harassment details the EEOC’s efforts to enforce the law, to educate and train workers and employers, and to share its expertise on new solutions to reduce harassing conduct in the workplace. Based on preliminary data, in FY 2018, the EEOC filed 66 harassment lawsuits, including 41 that included allegations of sexual harassment and recovered nearly $70 million for sexual harassment claims through litigation and administrative enforcement in FY 2018, up from $47.5 million in FY 2017.

The U.S. District Court has approved a settlement between Alorica, Inc. and the United States Equal Employment Opportunity Commission (EEOC) for $3.5 million to resolve a sexual harassment lawsuit.

According to the EEOC, the company subjected male and female customer service employees subjected to harassment, including a sexually hostile work environment, by managers and coworkers. The EEOC also alleged that the onsite human resources staff did not properly address the harassment despite repeated complaints by employees. The $3.5 million will be distributed among the class members from the company’s Fresno and Clovis, California facilities. For more about this case go here.

In a major victory for Uber Technologies, Inc., the Ninth Circuit Court of Appeal reversed a lower court’s ruling that certified a class of current and former drivers, and ruled that the claims against Uber for misclassifying their drivers as independent contractors must be filed individually as opposed to a class action.

Current and former drivers alleged that they were misclassified as independent contractors, and thereby denied reimbursements, tips, and other protections required for employees. The drivers had filed a class action against Uber, and the lower court certified the class, holding that an arbitration agreement the drivers had signed, which included a class waiver, was unenforceable. Uber then appealed. The Ninth Circuit held that “As the class certification by the district court was premised on the district court’s determination that the arbitration agreements unenforceable, the class certification must also be reversed.” This decision highlights the importance of employers including mandatory arbitration agreements (which have a class waiver) as part of their workplace policies. Read the decision here.

A former Facebook content moderator, Selena Scola, is suing Facebook alleging that she developed Post Traumatic Stress Disorder (PTSD) from reviewing disturbing material on a daily basis as part of her job duties.

Scola worked at Facebook from June 2017 until March 2018. She alleges that as part of her job, she witnessed thousands of acts of extreme and graphic violence.” As a content moderator, Scola enforced the social network’srules prohibiting certain types of content on its systems. Scola alleges that she developed PTSD “as a result of constant and unmitigated exposure to highly toxic and extremely disturbing images at the workplace.” Facebook hired Scola through a third-party contracting company, Pro Unlimited. The complaint also charges the Boca Raton, Fla.-based contracting company with violating California workplace safety standards.

Facebook relies on thousands of moderators and A.I. to determine whether posts violate its rules against violence, hate speech, child exploitation, nudity and disinformation. The Company will be hiring another 20,000 globally. Scola’s lawsuit also demands that Facebook and its third-party outsourcing companies provide content moderators with proper mandatory on-site and ongoing mental health treatment and support, and establish a medical monitoring fund for testing and providing mental health treatment to former and current moderators.

Companies with content moderators will need to consider safety measures to ensure safe working conditions for these employees, although workers’ compensation insurance coverage is intended to cover workplace injuries such as PTSD. It is interesting to note that this lawsuit was filed in superior court as opposed to the Workers’ Compensation Appeals Board.

A group of female workers claim that Facebook and 10 other employers engaged in unlawful gender discrimination by excluding them from job ads.

The ACLU, Outten & Golden LLP, and the Communications Workers of America (CWA) have filed the charges with the Equal Employment Opportunity Commission (EEOC) against Facebook and 10 other employers, on behalf of the female workers. According to the lawsuit, Facebook posted job ads to male Facebook users only, and excluded women from receiving the ads.

The charges were filed on behalf of three female workers, CWA and the hundreds of thousands of female workers CWA represents. According to the charges, most of the employers’ male-targeted ads highlighted jobs in male-dominated fields. The lawsuit also alleges that Facebook delivers job ads selectively based on age and sex categories that employers specifically choose, and that Facebook earns revenue from these ads.

In general, online platforms are not liable for publishing content created by others; however, counsel for the workers asserts that Facebook can be held liable for: (1) creating and operating a system that allows employers to select the gender and age of the people who get their job ads, including providing employers with data on users’ gender and age for targeting purposes; (2) delivering the gender- and age-based ads based on employers’ preferences; and (3) acting as a recruiter connecting employers with prospective employees.

In December of 2017, a similar lawsuit, Communications Workers of America et al. v. T-Mobile US Inc. et al., was filed against T-Mobile, Amazon, Cox Communications, and numerous other employers alleging a discriminatory practice of excluding older workers from receiving job ads on Facebook for available positions at their companies.

Employers, HR administrators, and risk managers should scrutinize recruiting practices to ensure that ads and other recruiting tools are targeted to a diverse group, unless there is a bona fide occupational qualification that can justify a specific group.

For any questions, please give us a call at Toll Free 1-562-888-0126 or email sales@yourvirtualhr.com for more information.

The U.S. District Court approved a consent decree between Alorica, Inc. and the United States Equal Employment Opportunity Commission (EEOC) for $3.5 million and remedial measures to resolve a sexual harassment lawsuit.

According to the EEOC, male and female customer service employees were subjected to harassment, including a sexually hostile work environment, by managers and coworkers. The EEOC further alleged that the onsite human resources staff failed to properly address the harassment despite repeated complaints by employees.

The EEOC filed suit in the U.S. District Court for the Eastern District of California (U.S. EEOC v. Alorica, Inc., Case No.: 1:17-cv-1270-LJO-MJS) and reached an early settlement of the lawsuit. The court approved the consent decree that resolves the case, which remains under the court's jurisdiction during the term of the decree.

The $3.5 million will be distributed among a class of victims of sexual harassment from the Fresno and Clovis, Calif. facilities, pursuant to a claims process set forth in the decree. In addition to the monetary relief, Alorica agreed to significant injunctive relief in the form of a three-year consent decree, which includes the hiring of a third-party monitor; the creation of an internal equal employment opportunity consultant and internal compliance officer; and, sexual harassment training, including incorporating civility and bystander intervention training, for its employees. The company also agreed to revise its anti-discrimination and retaliation policies and procedures as well as maintain records of any future sexual harassment and retaliation complaints, audits, and reporting.

"While no one should have to experience harassment on the job, I commend the women and men who bravely came forward in this case and brought their experience of harassment to the EEOC," said EEOC Acting Chair Victoria A. Lipnic. "I also commend our enforcement and legal teams, and the parties involved, for coming to a resolution that both provides relief to these women and men, and makes positive changes to the company's workplace practices."

"Sexual harassment continues to be a pressing issue in our region and we urge employers to take more proactive measures to prevent such misconduct," said Anna Park, regional attorney for the EEOC's Los Angeles District, which includes Fresno County in its jurisdiction. "We commend Alorica for working with the EEOC to create and implement measures that will prevent future abuses."

Rosa Viramontes, district director of the EEOC's Los Angeles District, added, "Combatting systemic harassment is a top priority of the Commission. Employees have the right to file complaints against employers that fail to protect them from sexual harassment, without the fear of retaliation."

According to Alorica's website, www.alorica.com, the company provides customer management solutions in the form of third party call center and technology services. Alorica is based out of Irvine, Calif., employing 100,000 workers across 16 countries, in 140 locations.

The U.S. Supreme Court has ruled that public sector workers who are represented by unions cannot be required to pay union dues.

The 5-4 decision, in Janus v. the American Federation of State, County and Municipal Employees Council 31, effectively makes the entire U.S. public sector a “right-to-work” zone. As a result, millions of public employees will be no longer be required to support unions, even though the union may be bargaining on their behalf. Read more here.

Bloomberg News is reporting that Wells Fargo & Co. must pay $97 million to home mortgage consultants and private mortgage bankers in California who didn’t get the breaks they were entitled to under the state’s stringent labor laws.

A federal judge in Los Angeles on Tuesday agreed with the bankers and consultants that the money they were entitled to should be based not just on their hourly pay but also on their commissions. That bumped the damages for the bank well above the $25 million it had argued it owed the employees. The lawsuit alleging various California wage and hour labor violations was brought last year by a Wells Fargo mortgage broker in Los Angeles. U.S. District Judge Percy Anderson threw out her claims other than the bank’s failure to provide rest breaks and one on unfair competition. Read More Here.

Companies with 250 or more employees that are currently required to keep OSHA injury and illness records, and companies with 20-249 employees that are classified in certain industries with historically high rates of occupational injuries and illnesses, must now electronically submit OSHA Form 300A.

Why is OSHA issuing this rule?

This simple change in OSHA’s rulemaking requirements will improve safety for workers across the country. One important reason stems from our understanding of human behavior and motivation. Behavioral economics tells us that making injury information publicly available will “nudge” employers to focus on safety. And, as we have seen in many examples, more attention to safety will save the lives and limbs of many workers, and will ultimately help the employer’s bottom line as well. Finally, this regulation will improve the accuracy of this data by ensuring that workers will not fear retaliation for reporting injuries or illnesses.

What does the rule require?

The new rule, which takes effect Jan. 1, 2017, requires certain employers to electronically submit injury and illness data that they are already required to record on their onsite OSHA Injury and Illness forms. Analysis of this data will enable OSHA to use its enforcement and compliance assistance resources more efficiently. Some of the data will also be posted to the OSHA website. OSHA believes that public disclosure will encourage employers to improve workplace safety and provide valuable information to workers, job seekers, customers, researchers and the general public. The amount of data submitted will vary depending on the size of company and type of industry.

How will electronic submission work?

OSHA has provided a secure website that offers three options for data submission. First, users are able to manually enter data into a webform. Second, users are able to upload a CSV file to process single or multiple establishments at the same time. Last, users of automated recordkeeping systems will have the ability to transmit data electronically via an API (application programming interface). The Injury Tracking Application (ITA) is accessible from the ITA launch page, where you are able to provide the Agency your 2017 OSHA Form 300A information. The date by which certain employers are required to submit to OSHA the information from their completed 2017 Form 300A is July 1, 2018.

Anti-retaliation protections

The rule also prohibits employers from discouraging workers from reporting an injury or illness. The final rule requires employers to inform employees of their right to report work-related injuries and illnesses free from retaliation, which can be satisfied by posting the already-required OSHA workplace poster. It also clarifies the existing implicit requirement that an employer’s procedure for reporting work-related injuries and illnesses must be reasonable and not deter or discourage employees from reporting; and incorporates the existing statutory prohibition on retaliating against employees for reporting work-related injuries or illnesses. These provisions become effective August 10, 2016, but OSHA has delayed their enforcement until Dec. 1, 2016.

Covered establishments with 250 or more employees are only required to provide their 2017 Form 300A summary data. OSHA is not accepting Form 300 and 301 information at this time. OSHA announced that it will issue a notice of proposed rulemaking (NPRM) to reconsider, revise, or remove provisions of the "Improve Tracking of Workplace Injuries and Illnesses" final rule, including the collection of the Forms 300/301 data. The Agency is currently drafting that NPRM and will seek comment on those provisions.

Establishments with 20-249 employees in certain high-risk industries must submit information from their 2017 Form 300A by July 1, 2018. Beginning in 2019 and every year thereafter, the information must be submitted by March 2. Read more here.

In a long anticipated decision, the California Supreme Court in Dynamex Operations West, Inc. v. Superior Court of Los Angeles, No. S222732 (Cal. Sup. Ct. Apr. 30, 2018), has adopted a new test, known as the “ABC” test for determining whether an individual is an employee versus an independent contractor under the Wage Orders.

The decision imposes a significant change in independent contractor law, and makes it much more difficult to establish independent contractor status. Read more here.

The U.S. Supreme Court has ruled that service advisers are salesmen and therefore exempt from overtime requirements, pursuant to federal law (the Fair Labor Standards Act).

Therefore, car dealerships are not required by federal law to pay overtime to the service advisors, service greeters or service repair employees. The Supreme Court’s decision could impact more than 18,000 dealerships nationwide and more than 100,000 service advisers.

The U.S. Court of Appeals for the 9th Circuit had previously ruled that service advisers were entitled to overtime. But in 2016, following the death of Justice Antonin Scalia, an eight-member Supreme Court sidestepped the overtime question and remanded the case to the 9th Circuit for review. After a second look, the appeals court once again ruled in favor of the service advisers, holding that they were entitled to overtime. The decision was appealed to the U.S. Supreme Court, where Justice Clarence Thomas wrote in a majority opinion that the “ordinary meaning of ‘salesman’ is someone who sells goods or services” and that service advisers “do precisely that.” Read more here.